Blake v. United States
1:10-cv-00610
W.D.N.Y.Apr 17, 2017Background
- Edward and Roxanne Blake sued the United States (FTCA), NYSARC/Resource Center, and Dr. Nabil Jamal for malpractice involving delayed diagnosis/treatment of Edward Blake’s cauda equina syndrome (CES) after visits from June 29 to July 2, 2006.
- Blake had long-standing chronic back problems and multiple prior complaints of radicular pain; he sought care June 29 (Dr. Jamal, VA clinic), June 30 (Dr. Rabie Stephan, Buffalo VA Hospital), and July 1 (phone triage to Nurse Kline and ER evaluation by Drs. O’Brien and Hobika).
- Contemporaneous records from June 29–30 did not document CES “red flag” symptoms (urinary retention/incontinence, saddle anesthesia, marked motor loss); records and treating physicians testified that such questions were asked and negative findings documented when present.
- Blake developed acute urinary incontinence and loss of leg sensation on July 1; VA triage at 4:16 pm directed him to the ER; CT/MRI and diagnosis followed overnight and surgery occurred July 2 (within ~24 hours of first report to VA ER).
- Plaintiffs’ experts largely relied on the contention that urinary dysfunction began before July 1 (June 28–30) and that providers should have pursued emergency workup earlier; court found many plaintiff expert opinions unpersuasive or factually uninformed.
- Court credited contemporaneous records and defense experts, concluded no breach of the standard of care and that surgery occurred within an acceptable timeframe; judgment for defendants and dismissal of plaintiffs’ claims (including loss of consortium).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Jamal breached care by failing to ask or note bladder dysfunction on June 29 | Blake: he told Dr. Jamal he had difficulty urinating; Jamal failed to elicit or document urinary symptoms | Jamal: custom/practice was to ask and to document positive findings; contemporaneous record lacks urinary complaint | Court: Credited records/Jamal testimony; Blake did not report urinary dysfunction on June 29 — no breach |
| Whether Dr. Stephan breached care on June 30 by failing to diagnose CES or keep it in differential | Blake: Stephan should have considered CES given pain and history | Stephan: He asked about bladder/bowel, found no dysfunction or neuro deficits, ruled out CES appropriately | Court: Credited Stephan and records; no breach |
| Whether Nurse Kline and TelCare erred by not routing Blake immediately to neurosurgical center on July 1 | Blake: Nurse should have overridden TelCare and sent him to a neurosurgical facility immediately | Gov.: Nurse followed TelCare to send him urgently to VA ER; ER then diagnosed, transferred, and surgery performed within 24 hrs | Court: Even if different advice, actions met standard; no breach because timely diagnosis and surgery occurred |
| Whether treatment/delay proximately caused Blake’s long-term injuries (timeliness of surgery) | Blake: earlier recognition/transfer would have avoided or reduced injury | Defendants: surgery occurred within acceptable window (within ~24 hrs of report); standard met | Court: Surgery/treatment timeline met standard; plaintiffs failed to prove causation |
Key Cases Cited
- Molzof v. United States, 502 U.S. 301 (FTCA liability measured by state law)
- Richards v. United States, 369 U.S. 1 (federal courts must apply whole law of the State for FTCA claims)
- Bernard v. United States, 25 F.3d 98 (2d Cir.) (state law governs FTCA claims)
- Nestorowich v. Ricotta, 97 N.Y.2d 393 (N.Y. 2002) (medical error alone does not establish malpractice)
- Sitts v. United States, 811 F.2d 736 (2d Cir. 1987) (expert proof generally required in malpractice cases)
- Fischl v. Armitage, 128 F.3d 50 (2d Cir. 1997) (preponderance standard explained)
- United States v. Perez, 85 F. Supp. 2d 220 (S.D.N.Y. 1999) (standard of care described; mere adverse outcome not negligence)
- Kasper v. Damian, 689 F. Supp. 2d 492 (W.D.N.Y. 2010) (court rejects hindsight-only negligence reasoning)